In a current weblog put up, we described normal registration and utility issues for employers searching for to enroll in California’s new Hospital and Expert Nursing Facility COVID-19 Retention Fee Program (the “WRP”) on behalf of their staff, together with particulars on eligibility, qualifying intervals, and outlined authorized phrases. Readers have requested tips on how to analyze whether or not physicians and different staff who carry out at the very least some “administration” or “supervisory” duties qualify for the WRP, which we handle right here.
Earlier than we dive in, as a reminder, employers should register for the WRP with California’s Division of Well being Care Providers (“DHCS”) by December 21, 2022 and submit full functions by December 30, 2022. Readers ought to consult with DHCS’ FAQ Web page and utility steering that features templates for worker submission information. DHCS is holding its final informational webinar on December nineteenth at 1:00p PST.
Which Healthcare Employees Are “Managers” and “Supervisors” Excluded from WRP?
The time period “supervisor” and “supervisor” is used within the WRP statute’s definition of who’s an “eligible full-time worker” and “eligible part-time worker.” Particularly, staff who serve in a managerial or supervisory function are ineligible to obtain WRP funds. To fall into that prohibited class the place an individual is ineligible for a WRP cost, DHCS’ FAQs state that an worker should meet all the following six (6) components in performing his/her duties and tasks for the employer who’s making use of to WRP:
- Manages the general enterprise or one in every of its departments or sub-divisions (the “Office”);
- Typically and commonly directs the work of at the very least two different staff within the Office;
- Hires/fires, or makes suggestions which might be given specific weight as to hiring, firing, development, promotion, or different standing modifications for workers within the Office;
- Typically and commonly workout routines discretion and impartial judgment;
- Primarily engages in work that meets the “duties take a look at” for exempt worker standing;
- Primarily engages in work that meets the “duties take a look at” for exempt worker standing; and
- Receives a month-to-month wage that is the same as or better than twice the California minimal wage for full-time employment.
Even when an worker has a title or is known as a supervisor or supervisor throughout the group, if he/she doesn’t fulfill all the six components above (e.g., he/she is not-exempt for extra time functions), then the worker can be eligible for WRP, assuming that he/she has in any other case glad the minimal variety of qualifying hours and qualifying intervals needed for participation in this system.
How Do the Phrases “Supervisor” and “Supervisor” Apply to Physicians for WRP Functions?
First, Decide Which Authorized Entity Ought to Embrace the Doctor on its WRP Utility:
Step one that we suggest healthcare entities soak up getting ready their WRP registrations and functions is to determine the authorized entity chargeable for making use of to WRP for particular teams of staff. Employers making use of for WRP should submit correct info to DHCS and, underneath penalty of perjury, affirm that they’re making use of for applicable funds from this system on behalf of eligible staff. Healthcare entities usually have excessive levels of medical and operational integration, however keep in mind that physicians could also be employed solely by entities licensed to carry out skilled providers underneath California legislation (e.g., an expert medical company), with restricted exceptions (i.e., together with the precise exception for sure entities to make use of physicians underneath Cal. Bus. & Professions Code 2401).
So, for a doctor who is just not a solo practitioner/self-employed, the doctor’s using entity ought to apply on his/her behalf for WRP. For instance, in a relationship the place a medical group is contracted to offer providers at a hospital or non-profit basis exempt from licensure underneath Cal. Well being and Security Code 1206(l), (i) the medical group ought to apply to WRP as a “Doctor Group Entity” for its employed physicians and, if relevant, employed mid-level suppliers (e.g., nurse practitioners, doctor assistants, and so forth.), and (ii) the hospital or basis would apply for their very own eligible staff as a “Lined Entity.”
As soon as a authorized entity clarifies the way it qualifies for WRP, and which staff are eligible primarily based on their location, scope of providers, and satisfaction of the WRP qualifying time intervals and hours commitments, the employer can decide which staff meet all the {qualifications} to be a “supervisor” or “supervisor” on the using entity and ought to be excluded from the appliance.
Second, Take Notice of DHCS’ Commentary on Doctor Eligibility for WRP:
The phrases “supervisor” and “supervisor” are used underneath the WRP statute solely to outline eligibility for full-time and part-time staff and should not used within the definition of “eligible physicians.” Nonetheless, DHCS’ FAQs and feedback throughout public informational calls on the WRP point out that DHCS is making use of the “supervisor” and “supervisor” exclusion to “eligible physicians” in addition to “eligible staff.” We’ve got sought clarification from DHCS with respect to their interpretation of that aspect of the statute. At this level, in mild of DHCS’ public place on the statute, for functions of submitting WRP functions, we suggest figuring out whether or not a doctor falls inside that class primarily based on the six-factor take a look at above earlier than submitting a WRP utility.
Third, Apply the “Supervisor” and “Supervisor” Check to Physicians:
As exempt staff (i.e., primarily based on duties and wage) who train discretion and impartial judgment in the midst of performing skilled providers and supervise different healthcare suppliers, the evaluation for many physicians underneath the six-factor take a look at will activate the precise impression of their function within the office. For instance, if a doctor is offering full-time, medical providers for a “Doctor Group Entity” however is both (i) not employed in a task at that authorized entity during which he/she manages that entity or any sub-division of it (e.g., a specialty division similar to pediatrics or orthopedics), or (ii) not ready the place he/she hires or fires or makes suggestions which might be given specific weight as to hiring, firing, development, promotion, or different standing modifications for workers, then he/she doubtless wouldn’t qualify as a “supervisor” or “supervisor” and due to this fact can be eligible for a WRP cost.
In contrast, if a doctor is employed in an administrative or medical management function throughout the Doctor Group Entity (i.e., President, Medical Director, CMO), or serves on its Board of Administrators, then primarily based on how DHCS is deciphering the WRP statute, he/she would doubtless be thought of a “supervisor” or “supervisor.” Given public feedback about how DHCS reads the WRP statute, probably the most conservative strategy can be to exclude that doctor from the entity’s WRP utility, even when he/she in any other case satisfies the definition of an “eligible doctor.” If we’re in a position to get readability from DHCS on its interpretation of the statute as excluding “eligible physicians” from WRP to the extent additionally they meet the definition of a “supervisor” or “supervisor”, we are going to make that info out there in a future put up.
